Heath v. Diamond
| Decision Date | 21 May 1975 |
| Citation | 368 N.Y.S.2d 440,82 Misc.2d 217 |
| Parties | David Paul HEATH, Petitioner, v. Henry L. DIAMOND, Commissioner, Department of Environmental Conservation of the State of New York, Respondent. Francis Eugene ELLIOTT, Petitioner, v. Henry L. DIAMOND, Commissioner, Department of Environmental Conservation of the State of New York, Respondent. |
| Court | New York Supreme Court |
These are proceedings under CPLR Article 78 to annul the separate orders of the respondent revoking 'all hunting, trapping and big game licenses and all bow hunting stamps' held by the petitioners for a period of five years under Environmental Conservation Law (ECL) 11--0719(1).
There is no dispute as to what occurred procedurally. On December 12, 1973 both petitioners were arrested by an Environmental Conservation officer for jointly taking a doe deer out of season on that date in violation of ECL 11--0901(10), which is a misdemeanor (ECL 71--0921). On the same date both plead guilty to the charge before a Justice of the Peace and were convicted thereof. These convictions were affirmed on appeal to the Schuyler County Court but the sentences were modified in People v. Heath and Elliott, 77 Misc.2d 215, 352 N.Y.S.2d 863.
On February 21, 1974 the Department of Environmental Conservation by letter notified each petitioner that he had been convicted of taking a doe deer out of season in violation of ECL 11--0901(10) and as a result the Department could revoke his license and deny the privilege of obtaining such a license for a period not to exceed five years. The letter then advised that action in the matter would be withheld for a period of ten days to give each petitioner an opportunity to sumbmit any written statement he cared to make on his behalf. Petitioner Heath availed himself of the opportunity and sent in the affidavit he had submitted to the Schuyler County Court on his appeal from his conviction. Petitioner Elliott did not submit a statement.
It should be noted that the petitioners both claimed they killed the doe, which they allege had been seriously wounded, for humanitarian reasons; that they were not told by the Justice of the Peace that a plea of guilty to the charge might result in the loss of their hunting privileges and that the Conservation officer who was present told them he did not know if they would be subject to loss of their hunting privileges if they plead guilty and were convicted.
In September 1974 the Department of Environmental Conservation revoked petitioners' hunting, trapping and big game licenses and bow hunting stamps and their privilege of obtaining such again until January 1, 1979, a period of about four years and three and a half months. Their rights to apply for fishing licenses were not affected.
The petitioners contend that the orders suspending their licenses should be annulled because (1) they were not given advance warning that a conviction of violation of ECL 11--0901(10) might result in the loss of their hunting privileges pursuant to the provisions of ECL 11--0719(1) before they plead guilty; (2) that they were denied due process of law by the revocation of their licenses without a hearing before the Department and therefore such action was illegal, and (3) that the order of the Department of Environmental Conservation was arbitrary.
At the outset it should be pointed out that we may not review or set aside under a CPLR Article 78 proceeding the criminal convictions of the petitioners (CPLR 7801(2)). These convictions have been affirmed on appeal.
There is no provision in any statute analogous to Vehicle and Traffic Law § 1807(1) which requires that prior to entering a plea of guilty to a charge of violating Fish and Wildlife Article of the Environmental Conservation Law that the defendant must be advised that he may lose his hunting privileges on conviction of the charge. There are many other licenses, including those involving property rights, that may be lost on conviction of the holder of certain crimes even though there is no statutory requirement that such a licensee be advised before entering a plea that he may lose his license upon being convicted. Therefore there was no requirement, statutory or otherwise, that these petitioners be advised before pleading guilty t the criminal charges that they might lose their hunting privileges.
The more serious question is whether the petitioners were deprived of the constitutional right to due process by having their licenses to hunt revoked without being afforded a hearing by the Department of Environment Conservation. Concededly they were given a statement of the reason for the proposed revocations.
Environmental Conservation Law 11--0719(1) provides that where a licensee is convicted of illegally taking a doe deer, as these petitioners were, the Department may revoke any license to hunt, fish or trap, etc. and may also deny the privilege of obtaining any such licenses for a period not exceeding five years. There is no requirement for a prior hearing. Under this first subdivision there must have been a prior conviction in a criminal proceeding. Subdivision 2 of ECL 11--0719 provides for a hearing prior to revocation and suspension where a licensee has been charged with certain dangerous conduct with a firearm or a longbow as specifically set forth in that subdivision. It is evident that the Legislature felt that a criminal proceeding leading to a conviction was notice and hearing enough on which to base a revocation of a license under the first subdivision. Under Subdivision 2 of that section there might well not be any criminal proceedings and revocation is not based on the conviction of a crime.
Though this statute does not expressly provide for a hearing, a...
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